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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA, PRETORIA

 

CASE NO: CT001MAR2014

 

In the matter between:-

 

MAXI GROEPSKEMAS (PTY)LTD                                Applicant

 

And

 

MAXI FINANCE AND DEVELOPMENT (PTY) LTD       First Respondent

 

COMMISSIONER OF COMPANIES                               Second Respondent

 

Coram: Kganyago M.F

Decision handed down on the 27th June 2014

 

 

DECISION

 

 

[1]     The applicant is applying for a default order in this matter. The applicant has instituted the proceedings against the first respondent, alleging that the first respondent name is confusingly similar to the applicant’s MAXI trade mark and the applicant’s name MAXI GROEPSKEMAS. The applicant is seeking an order that the first respondent be ordered to change its name to one which does not incorporate and is not confusingly and/or deceptively similar to the applicant’s trade mark MAXI.

 

[2]     The second respondent has been cited as an interested party. The order which the applicant seeks against the second respondent is to record the first respondent’s registration number in case the first respondent does not comply with the order that might have been granted against them.

 

[3]     The first respondent was served with the initiating documents on the 17th April 2014 by the sheriff to one Mr S Naidoo. The first respondent did not file any opposing papers and the 20 days period within which to file opposing papers if they intend to do so has lapsed. The applicant is now applying for a default order.

 

[4]     The applicant’s application is based on section 11(2)(b)(i) and (iii) and 11(2)(c)(i) of the Companies Act 71 of 2008 (“the Act”). The applicant’s application has been made in terms of section 160 of the Act.

 

[5]     According to the applicant, the first respondent’s name is used in relation to a business which provides services which are similar to the applicant’s services. The applicant contend that the use of the Companies name in relation to a business trading in the same or similar services as those of them is likely to lead to confusion in trade, to the detriment of their business.

 

[6]     In Adidas AG and Another v Pepkor Retail Ltd (187/12) [2013] ZASCA 3 at paragraph 22 the court said the following:-

 

“It must be borne in mind that the question of the likelihood of confusion or deception is a matter of first impression and that ‘one should not peer too closely at the registered mark and the alleged infringement to find similarities or differences’. The court must not consider the question of deception or confusion as if the purchaser of the goods will have had the opportunity of carefully considering the marks and even comparing them side by side. They must look at the marks as they will be seen in the marketplace and take into account on national purchaser: “a person of average intelligence, and proper eyesight, buying with ordinary caution.”

 

[7]     I am having the unchallenged version of the applicant. If both the applicant’s and the first respondent’s names were to be used in relation to the business that provides similar services, in my view there is a likelihood that the members of the public might be misled in believing that the two entities are connected. I am therefore satisfied that the applicant has made a case for default order to be granted.

 

ORDER

 

8.1.       The applicant’s application for a default order is granted.

8.2.       The first respondent must change its name to one which does not incorporate and is not confusingly and/or deceptively similar to the applicant’s trade mark MAXI within three months of receipt of this decision.

8.3.       In the event that the event that the first respondent fails to comply with the order as stated in paragraph 8.2 within three months, the second respondent is directed, in terms of section 160(3)(b) (ii) read with section 14(2)(b)(ii) of the Act, to record the first respondent’s registration number (K2012/01744/07) followed by (PTY)Ltd, as the First Respondent’s interim company name on the companies register.

8.4.       No order ads to costs.

 

 

M.F KGANYAGO

MEMBER OF THE COMPANIES TRIBUNAL

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